The Making of the First US ICO Fraud Case
In common law systems, it is precedent that informs judicial approaches to new and previously unaddressed matters. The precedent that will likely shape the body of U.S. case law on fraudulent initial coin offerings (ICOs) is currently being forged in a federal court in the New York borough of Brooklyn, where a 39-year old entrepreneur, Maksim Zaslavskiy, has pleaded guilty to committing securities fraud.
The development that will most likely result in a landmark decision – the jury will gather in April 2019 to decide on a sentence – is yet another twist of a now 14 month-long effort, involving both the U.S. Department of Justice and Securities and Exchange Commission (SEC). Previously, the process has already yielded a fateful ruling by a federal judge who in September established that securities law is applicable to ICO-related cases.
The case that is poised to become so consequential for the whole ICO space deals with two ventures that neither issued a token nor developed any blockchain-powered infrastructure: REcoin and Diamond Reserve Coin both only existed on paper. Yet it also makes perfect sense that the authorities first went after the most brazen instances of ICO fraud, the ones that hurt rookie retail investors the worst and inflicted the most reputational damage on the industry.
When the SEC first filed a complaint against Zaslavskiy in a federal court in September 2017, it was estimated that REcoin and Diamond Reserve Coin ICOs resulted in around 1,000 investors losing some $300,000. Having fallen for Zaslavskiy’s aggressive marketing campaign, these people were led to believe that they either invested in a digital asset that was backed by real estate located in developed countries (REcoin), or purchased a tokenized membership in an elite club for wealthy business people, with physical diamonds in the company’s custody underlying the value of tokens.
In fact, though, they were buying “worthless certificates,” as U.S. district attorney, Richard Donague, put it, on Nov. 15, 2018, Zaslavskiy admitted in his guilty plea: “We had not yet purchased any real estate.” He now faces up to 5 years in prison, pending the decision of a jury panel. The regulator is also filing a civil lawsuit against Zaslavskiy.
The making of a fraudster
The Ukrainian city of Odessa, overlooking a scenic coastline of the Black Sea, is known for its vibrant spirit and unique culture. Throughout both the Imperial and Soviet periods of its history, the city has been home to a large Jewish community. As the final years of the USSR saw the liberalization of immigration policies, many Odessan Jews chose to leave for either Israel or the West. Born in Odessa, Maksim Zaslavskiy was 12 when his family relocated to the U.S. While Maksim was destined to make ICO history, his brother, Dmitry, chose a banking career and later became an executive director for Morgan Stanley.
Zaslavskiy’s social media pages, as well as websites of many organizations he ran at various points of time, were either deleted or became unavailable in the wake of the high-profile investigation into his activities. The main source of information about his pre-trial life is now the four-hour interview to the SEC representative that he gave in September 2017, of which the Fast Company magazine managed to obtain a transcript.
In 2003, Zaslavskiy received his degree in finance from Baruch College, followed by a LLM from Yeshiva University’s Cardozo School of Law three years later. He worked as an IT consultant for several banks before starting his own international business, whose nature is difficult to infer from the interview. Zaslavskiy also claimed to have been involved in real estate business since the age of 18, yet Fast Company’s investigation failed to verify his employment with the firms he claimed to have worked for.
According to the interview, the 2008 crisis became a major blow for Zaslavskiy’s business, further entrenching him in his resentment of the U.S. financial system. He turned to charity work, founding a philanthropic organization called Live Love Laugh. However, it is impossible to say whether the ambitious statements on its website (which is now down) were ever backed by any real actions, since the entity appears to never have been properly registered.
Zaslavskiy has also written at least three books (under the name Avi Meir Zaslavsky) that can be still found on Amazon. These are how-to guidebooks on the ins and outs of real estate business. Another one, which appeared around the time his two ICOs were in full swing in August 2017, sets out to explain the reader that “what you perceive and use as money is designed in such a way that the wealth created by the economy truly benefits only large banks and multinational corporations.”
Apparently, the book was meant to lend credibility to Zaslavskiy’s claim for intellectual leadership in the crypto space, as its press release presents him as “one of the world’s leading currency decentralization proponents.” The publicity campaign around the book provides a glimpse into Zaslavskiy’s approach to marketing himself and his ventures: bold, extravagant, overblown. Unsurprisingly, this style carried over to the way his two ICOs were presented to potential investors.
Real estate tokens and Initial Membership Offerings
For someone disenchanted with both the traditional financial system and traditional means of making money, the ICO rush of 2017 presented innumerable opportunities. The beauty of the ICO model was that it opened up the world of venture capital, previously reserved exclusively for professional investors, to anyone with a few spare dollars and some interest in the uncharted space of blockchain applications. The flipside of it is that some of the newcomers were unable to tell legitimate projects from outright scams replete with red flags.
Megalomaniac language and exaggerated promises are usually telltale signs of something not being right with the venture that’s taking off. Zaslavskiy’s projects had both. REcoin, announced in June 2017, presented its founder as a “Real Estate guru” and proclaimed that the 101REcoin Trust held properties “in developed and stable economies like the USA, Canada, Japan, Great Britain, and Switzerland” without providing any evidence in support. Also, an “international team of attorneys and programmers” was allegedly there to “work tirelessly” on increasing token holders’ fortunes. As the court proceedings later revealed, no such team ever existed.
In August, after facing the first signs of SEC interest to REcoin, the “Entrepreneur, Philanthropist, and Author Max Zaslavsky” began his marketing campaign for an allegedly diamond-backed digital asset, the Diamond Reserve Club token. The release (beginning with “If the Holy Scriptures have taught us anything at all…”) touted a brand new Initial Membership Offering model, which was supposed to tokenize investors’ participation in a large ecosystem of interconnected businesses. It also suggested that the tokens could be inherited by the investors’ grandchildren.
One would think that the theatrical language and gargantuan assurances of the two ICOs’ public-facing documents would only make any reasonable person scoff. Yet from July through September Zaslavskiy and his accomplices managed to amass around $300,000 before the SEC took the matter to court.
On Sep. 29, 2017, the SEC brought a civil complaint to the U.S. District Court for the Eastern District of New York against Zaslavskiy and his two companies for violating U.S. securities laws. Recoin and DRC responded on their websites with a joint statement that argued that it was due to “lack of legal clarity as to when an ICO or a digital asset is a security,” suggesting that their operations were not within the SEC’s purview.
However, the Feds seemed to disagree. On Nov. 1, Zaslavskiy was apprehended by FBI agents and criminally charged with a conspiracy to commit securities fraud. In early December, he pleaded not guilty and secured a $250,000 bail backed by his family’s Brooklyn house. In February, Zaslavskiy’s defense filed a motion to dismiss the indictment on the grounds of inappropriate application of securities law to cryptocurrencies. Yet both the DoJ and SEC insisted that REcoin and DRC tokens passed the Howey test – a legal standard that determines whether a contract is a security.
In September, U.S. district judge Raymond Dearie concluded that for the purposes of the case, the tokens could, indeed, be treated as securities, potentially setting a precedent that could shape the future of ICO regulation. The judge was also unequivocal in characterizing the nature of Zaslavskiy’s enterprises:
“Stripped of the 21st century jargon, including the Defendant’s own characterization of the offered investment opportunities, the challenged indictment charges a straightforward scam, replete with the common characteristics of many financial frauds.”